In re Urlacher

• Decision Date: 03 July 2018
• Docket Number: No. 49781-6-II,49781-6-II
• Citation: 427 P.3d 662
• Parties: In the MATTER OF the DETENTION OF Charles URLACHER, Appellant
• Court: Washington Court of Appeals

427 P.3d 662

In the MATTER OF the DETENTION OF Charles URLACHER, Appellant,

No. 49781-6-II

Court of Appeals of Washington, Division 2.

Filed July 3, 2018

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, PO Box 6490, Olympia, WA, 98507-6490, for Appellant

Kristie Barham, Office of the Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent

Lee, A.C.J.

¶ 1 Charles Urlacher, a sexually violent predator (SVP), appeals the trial court’s order entered after a jury trial, denying his conditional release to a less restrictive alternative plan (LRA), arguing that (1) the trial court’s jury instructions on "best interest" and "adequately protect the community" were insufficient, (2) the trial court abused its discretion by not providing his proposed jury instructions defining "best interest" and "adequately protect the community," (3) the trial court’s instructions violated his due process rights, and (4) the State committed prosecutorial misconduct. We affirm.

FACTS

A. COMMITMENT AND PETITION FOR CONDITIONAL RELEASE

¶ 2 Urlacher was committed to the Special Commitment Center (SCC) on McNeil Island as an SVP in 2011. Urlacher was diagnosed with pedophilic disorder¹ and narcissistic personality disorder.² While at the SCC, he participated in sex offender treatment and other treatment addressing distorted thinking, and he made some improvements.

¶ 3 In 2015, Urlacher petitioned for a trial to determine whether he should be conditionally released to an LRA. The petition was granted and a trial date was set.

B. PROPOSED LRA

¶ 4 Urlacher’s proposed LRA included conditions that he would have to follow if the trial court granted conditional release. The conditions covered housing, treatment, supervision, and other areas.

¶ 5 For housing, Urlacher would live at an apartment complex in Tukwila. He would not leave his home, except for pre-approved activities during which he would be accompanied by a trained chaperone. Urlacher would have to submit requests for any travel, which would have to be approved by his supervising community corrections officer (CCO).

¶ 6 For treatment, Urlacher would participate in sex offender treatment with a certified treatment provider and comply with the provider’s set treatment plan. The treatment provider would provide monthly reports to the court with Urlacher’s progress.

¶ 7 For supervision, Urlacher would have an electronic monitoring device at all times, and a CCO from the Department of Corrections (DOC) would supervise him. Urlacher would provide departure and arrival times to the CCO when leaving his home. The CCO would also be alerted of any problems with the monitoring device.

¶ 8 Additionally, Urlacher would not have any contact with persons under the age of 18 without court approval, and if approved, would be accompanied by a chaperone. Urlacher would also submit to polygraph and plethysmograph testing.

C. TRIAL

1. Goldberg Testimony

¶ 9 The State called Dr. Harry Goldberg, a forensic psychologist, to testify. Dr. Goldberg had evaluated Urlacher four times. Dr. Goldberg testified that Urlacher’s dynamic risk factors³ were sexual interest in children, pre-occupation with sex, lack of emotional adult relationships, emotional congruence with children and awkwardness with adults, callousness, impulsiveness, resistance to rules and supervision, viewing himself as a victim, and coping in a destructive manner.

¶ 10 Dr. Goldberg opined that release to the proposed LRA would not be in Urlacher’s best interest. Dr. Goldberg defined an LRA to be in a person’s "best interest" when the person has demonstrated consistent motivation and skills to be successful once released to an LRA. He had seen treatment gains in Urlacher but believed it was premature to think that Urlacher was ready for the next step. Dr. Goldberg had concerns about Urlacher’s ability to manage his problems with transparency in treatment, arousal to thoughts of children, and accepting feedback.

¶ 11 Dr. Goldberg also opined that the conditions of the proposed LRA would not adequately protect the community. He defined "adequately protect the community" as a plan that would eliminate the chance of re-offense. Dr. Goldberg believed that the adequacy of chaperones was a fluid situation and that the travel aspects were not fully fleshed out. Dr. Goldberg used his clinical judgment to form his opinions.

¶ 12 On cross-examination, Dr. Goldberg was asked:

Q And in your interpretation of the phrase "adequate to protect the community," in order to be adequate, we must protect the community from all risks of sexual violent re-offense; is that right?

A Correct.

Q In other words, in your interpretation of the phrase ‘adequate to protect the community,’ we must make it a 0 percent risk of re-offense; is that right?

A Correct.

Verbatim Report of Proceedings (VRP) (Oct. 6, 2016) at 358.

2. Spizman Testimony

¶ 13 Urlacher called Dr. Paul Spizman, a licensed psychologist, to testify. Dr. Spizman met with Urlacher twice. Although several dynamic risk factors came up as areas of concern from time to time, Dr. Spizman believed that Urlacher had made a lot of gains and was ready for the next step.

¶ 14 Dr. Spizman opined that the proposed LRA was in Urlacher’s best interest and adequate to serve his treatment needs. Dr. Spizman defined "best interest" as whether the individual was progressing in treatment and ready for the next step in moving into the community. Urlacher had demonstrated gains in managing his dynamic risk factors and made significant progress in treatment, so placing him in the community would allow him to further those gains, establish himself in the community, and develop his support network. Dr. Spizman believed that Urlacher was ready to move on, and the program in place would continue to incentivize successful treatment.

¶ 15 Dr. Spizman also opined that the proposed LRA conditions were adequate to protect the community. For community protection, Dr. Spizman considered the individual themselves, whether the person understood their dynamic risk factors and had interventions in place to adequately contain them, and other factors such as the restrictions imposed and the support network in place. Urlacher had demonstrated a strong ability to manage his dynamic risk factors, and the proposed conditions, such as electronic monitoring, pre-approval for travel, and CCO supervision, would adequately protect the community.

3. Urlacher Testimony

¶ 16 Urlacher also testified. Urlacher had molested his sons. He told his younger son that talking about sex was natural and that doing it was okay; this was a part of his grooming process to obtain immediate sexual gratification. Urlacher also groomed other children who were his sons’ friends, and molested and raped them. Urlacher testified that "grooming" refers to "[s]etting somebody up for an action whether it be legal or illegal" and "breaking down natural barriers that a person ... would have."⁴ VRP (Oct. 3, 2016) at 57. He further testified that sex offender treatment was an integral part of the proposed LRA and that he had signed an agreement with a therapist to continue treatment. Urlacher believed he was ready for conditional release. The trial court admitted Urlacher’s proposed LRA into evidence.

4. Jury Question

¶ 17 The jury was allowed to present questions to the trial court to ask the witnesses. The jury submitted one question for Dr. Spizman. The question asked, "Could Urlacher’s testimony be him grooming the jury?" VRP (Oct. 11, 2016) at 638. The trial court stated that the question "seem[ed] a bit argumentative" and declined to pose the question to Dr. Spizman. VRP (Oct. 11, 2016) at 638.

C. JURY INSTRUCTIONS

¶ 18 Before the conclusion of trial, Urlacher proposed jury instructions that included definitions of "best interest" and "adequately protect the community." CP at 456-57. Urlacher’s proposed instruction for "best interest" stated:

In evaluating whether or not the proposed less restrictive alternative plan is in the Respondent’s best interests, you are to consider whether the proposed less restrictive alternative plan properly incentivizes successful treatment participation and whether it is the appropriate next step in the Respondent’s treatment.

CP at 456. Urlacher’s proposed instruction for "adequately protect the community" stated:

When evaluating whether the Respondent’s proposed less restrictive alternative plan is "adequate to protect the community", you are to consider the individual aspects of the Respondent’s release plan, rather than the Respondent himself. It is not necessary that all risk be removed in order for the proposed less restrictive alternative plan to be "adequate to protect the community".

CP at 457. The State objected to both jury instructions.

¶ 19 The trial court declined to give the proposed jury instructions. For "best interest," the trial court stated that "some kind of instruction might be useful" but declined to give the proposed instruction because it was not an approved instruction. VRP (Oct. 12, 2016) at 965. For "adequate to protect the community," the trial court said that the phrase would be easily understood by the jury. The trial court ruled that, based on Bergen ,⁵ the proposed jury instructions were not necessary.

¶ 20 The trial court instructed the jury that

[t]o establish that the respondent’s proposed less restrictive alternative placement should not be granted, the State must prove one of the following beyond a reasonable doubt:

(1) That the proposed less restrictive alternative placement plan is not in the respondent’s best interests; or

(2) That the proposed less restrictive alternative placement plan does not include conditions that will adequately protect the community.

CP at 668. The trial court also instructed the jury that the community protection factor did not require "that all risk be removed." CP at 671. The trial court further instructed that Urlacher was previously found to be an SVP, which meant he was "likely to engage in...